Judge throws out 57-year-old copyright on “We Shall Overcome”

Pete Seeger asked for his name to be removed from the copyright in 1994.

A federal judge ruled (PDF) on Friday that the most famous verse of the civil rights anthem "We Shall Overcome" is not copyrighted.

The ruling is a decisive, but still incomplete, win for the two plaintiffs. One of those plaintiffs is a charity group called the "We Shall Overcome Foundation" that's making a movie about the song, and the other is Butler Films LLC, a company that paid $15,000 to license just several seconds of the song for the movie "Lee Daniels' The Butler."

Plaintiff's attorney Randall Newman hopes the two organizations will represent a class-action case composed of people who were charged royalties for using the song.

The foundation's website says its film will demonstrate "extraordinary evidence that 'We Shall Overcome' was unlawfully misappropriated from the African-American Church and belongs in the public domain."

In a 66-page opinion, US District Judge Denise Cote held that the versions of "We Shall Overcome" in copyright applications dated 1960 and 1963 were not "sufficiently original to qualify as a derivative work." They differed by only two words from the "We Shall Overcome" that was published in a 1948 songbook by People's Songs, Inc., which listed Pete Seeger as its chairman. The copyright for that song was never renewed, and it's now in the public domain.

Copyright applications filed in 1960 and 1963 that resulted in the copyright by the current purported owners, Ludlow Music and The Richmond Organization, made only tiny changes to the lyrics of the first verse, which is also the fifth verse. The 1960 version reads as follows:

We shall overcome,
We shall overcome,
We shall overcome some day;
Oh, deep in my heart,
I do believe,
We shall overcome some day.

That's nearly identical to the "People's Song" version, which uses "will" rather than "shall" and "down in my heart" rather than "deep in my heart."

Now, the case is headed toward trial in December. A few big issues have yet to be decided. First, the judge will have to decide whether the remaining verses of the 1960 and 1963 versions of the song have valid copyrights. Second, the judge must decide whether the plaintiffs should be allowed to form a class of people and companies who paid copyright royalties to Ludlow/TRO. Finally, plaintiffs will have to argue what damages they are owed.

"The Court understood that the authors identified in Defendants' purported copyright did not add anything substantial to the music or lyrics to the first verse of 'We Shall Overcome,'" Newman said in an e-mail to Ars about the ruling. "I am pleased that the Court returned this important and iconic civil rights song to the public so that it can be used by anyone without having to obtain permission or pay royalties to Defendants."

An attorney for Ludlow and The Richmond Organization didn't reply to a request for comment.

Musical History

The exact origins of the song are unknown, and it could have originated from African-American spirituals with similar titles like "I'll Overcome" and "I'll Be All Right." The way the song entered the public consciousness from the 1940s forward is fairly clear. Zilphia Horton, an educator and musician working at Tennessee's Highlander Folk School, learned the song from striking tobacco workers. She wrote it down in a (non-copyrighted) songbook published by the school, and she taught it to many, including the famous folk singer Pete Seeger.

It isn't clear who changed "will" to "shall," although Seeger later said "it could have been me with my Harvard education." Either way, he liked the change to "shall" and said it had a "more open sound" and "opens the mouth wider."

The "Folk School Version" published in a Highlander Folk School songbook called "Sing Out Brother" in 1948. The lyrics were not copyrighted, and the melody was attributed to an "Old Negro Spiritual."

The version of "We Will Overcome" published in "People's Songs" was copyrighted 1948. The copyright expired in 1974. It's undisputed that this version of the song is in the public domain.

Cherry Lane Music Inc. filed this copyright registration in 1959, calling it "an arrangement and adaptation of various Negro spirituals" and listing Robert De Cormier as the author of the arrangement.

The song as copyrighted by Ludlow in 1960, with "new words and music arrangement," by Zilphia Horton, Frank Hamilton, and Guy Carawan.

Sheet music for the first verse of the 1963 deposit copy by Ludlow Music Inc., identifying Horton, Hamilton, Carawan, and Pete Seeger as authors.

The song as published in the April-May 1961 edition of Pete Seeger's folk music magazine "Sing Out!" The words are the same as the 1948 "People's Songs" version, except that it uses "deep" instead of "down."

Horton died in 1956. Her husband entered into a contract with Ludlow Music on her behalf, which filed for a copyright registration, citing Zilphia Horton, Frank Hamilton, and Guy Carawan as authors of "New words & music Arrangement" for the song. The 1963 application also listed the renowned folk singer Pete Seeger as an author.

Seeger called it "really and truly one of the world's greatest songs," and he expressed regret that it was impossible to find the black tobacco workers who taught the song to Zilphia Horton.

"I know that, if anybody asks me who deserves credit for the song, I feel like wanting to mention them, even though we don't know their name[s]," said Seeger, who died in 2014.

In 1993, Seeger explained that he sought a copyright because his publishers told him, "If you don't copyright this now, some Hollywood types will have a version out next year like 'Come On Baby, We Shall Overcome Tonight.'" That convinced him to sign a 'songwriter's contract.'"

Further Reading

Seeger repeatedly asked for his name to be removed from the copyright, beginning in 1994, but it never was. An interoffice memo at The Richmond Organization suggests the copyright owner wasn't keen on following through with Seeger's request.

"We could tell Pete we're investigating it in the hopes that he may forget," Howard Richmond wrote to his son Larry in an interoffice memo, quoted in the judge's decision.

The current lawsuit came about when We Shall Overcome Foundation sought a synchronization license from Ludlow/TRO. The foundation submitted an "a cappella" version of the first verse in March 2015, but Ludlow/TRO refused to grant a license, and the agency wouldn't say why.

"As previously mentioned to you, "WE SHALL OVERCOME" is not available for use," was the response they got via e-mail. "No other information is available."

If We Shall Overcome Foundation had been granted a license, it could have been expensive. Lee Daniels' The Butler, an award-winning American historical drama, paid $15,000 for a license to use the song for no more than 10 seconds.

The plaintiffs in this case also argued that Ludlow and TRO committed fraud on the copyright office when they acquired the copyright by not identifying the true ancestors of the song, such as the public domain spiritual. The judge declined to get into the fraud allegations on the summary judgment motion, saying that would require a trial to resolve.